Crumblin, A.P. v Kerr, W.M

-	TATCHWORDS

.9DMINISDATIVE LAW:

Judicial review - Australian Capital

Territory Fire Brigade

- Appointment of officer to act

temporarily in higher rank

- Whether applicant eligible

for

promotion to that rank

- '&ether

eligibility includes

satisfactory conduct and service

- Meaning of seniority where

criterlon prescribed - Basis of choice between officers of equal

seniority - Law reform necessary.

Administrative Oecisions (Judicial Review) Act 1977 (Cth), 5.5

Fire Erisade (Administration) Ordinance 1974 (A.C.T.)

Flre Brigade (Administration) Regulations

ADRIM PAUL CRUMELIN v. WILLIAM MOORE GOULD KERR

ACT G 70 of 1986

Nesves J.

23 April 1987

Canberra

SZI'LEEN :

ILDF.IA?I PAIX, CRUMELXX

Applicant

.MD :

WILLIAM MOORE GOULD KFBR,

Respondent

I	EIIMJTE OF O R ,
l
I

JUDGE MAKING ORDER	: Meaves S .
_-.____	DATE OF ORDER	: 23 April 1937
__	WERE MAPE	: Canberra
.	THE COUHT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the

responaent's

costs

of the

application.

___	Note: Settlement and entry of orders i s dealt with	i n Order 36
of the Federal Court Rules.

-	I N THE FEDERAL COURT QF ?.USTRALG	)
,

AUSTRXIAN

CAPITBL

TERRi'Jm

)	No. ACT G 70 of 1986

CENERAL DIVISIa t

? d ) R X N

PRUI. -

CRUMBLIN

Applicant

WILL1.W

>?CORE COUiliD KEXR,

Respondent

RERCONS FOR J U K m

This application

under

5 . 5

the aministrative

Decisions (Judicial 9-W)

Act 1977 (Cth) ("the Judicial

Review Act") involves an examination of the

legislative

provisions

governing

the

promotlon

officers

the

Australian Capital Territory

Fire Brigade

("the Brigade") and

the appointment

of such offlcers

to act temporarily in

a higher

rank. That examination has demonstrated beyond doubt that the Iegislatlvc provisions arc m urgent need of complete revision.

The

applicatlon, whlch

brought by Adrian Paul

Crurnblln ("the applicant"), seeks an order of renew in respect of a clccislon made by Wllllam Moorc Gould Kerr ("the respondent") on 8 August 1986 to appolnt an officer other than the applicant to act tcinpornrlly In the higher rank of

Superintendent. The appllcarlt 15, and was at all material

times, an officer of the Erigade

with the rank of District

9fficer.

The responaent is, and was at all material tunes, the

Commlssloner of t he Brlgade.

Ew Brlgxie 1 s established by the

Fire

Eriqadc

(Adm1nistraclo2?) Ordinance 1374

(A.C.T.) ("the Ordinance") and

at	the relevant time consisted of the Commissioner and the

members, being officers

and firemen, of the Brigade appointed

by the Commissloner

(s .16) .

Provision is made by the

Eriuade (Administration) (Amendment) Ordinance 1982 (A.C.T.)

for the appointment

of a Deputy Fire Commissioner but the Court

was	informed that that Ordinance did not come into operation

until 2 April 1987.

Subject to the Ordinance, the Commissioner

is, under the direction of the Minister, charged with the Tenera1 control and manaqement of the Brigade (5.12). He may, from time to time, in writinq, issue such general orders and

instructions as are necessary to secure the good government

and

efficient working of the Brigade (5.13).

A s the Minister has not exercised the power conferred

by s.19

to create new ranks

in addition to those specified in

5.17 or in substitution for

any of the ranks so specified, the

ranks of officers

of the Brigade

are, in descending order,

Superintendent, District Officer and Station Officer

(s.17).

Provision is made by the Ordinance

for

t;hc appointment

officers and firemen ( s . 2 0 ) and for

their promotion to higher

rank

( s . 2 9 ) .

A person may not be appointed

an officer

unless he

1s qualified in accordance

with the regulations.

( 5 . 2 3 ) .

A& officer may not bc promoted to a rank unless he is

eligible In accordance wlth

the regulatlons for promotion to

that rank

( sub-S. 29 ( 2 )

) .

promotion is provisional and

subJect to appeal

on thc ground

equal

efficiency

and

senlorlty ( 5 5 . 3 2 and 3 3 ) .

Scnlorlty is not defined.

I need

not stay to conslder,

for the purposes

of the application

before me, whether the refemnce to equal efficiency and seniority in s.33(1) has the effect that the appeal may be decided on criteria different from those upon which the promotion was made, particularly In a case where the provisions

of reg.17 of the regulatlons	(as to the text	of	which see
later) are applicable.

Sectlon 30 provides:

"30. The Commlssioner may, from time to time, in accordance wlth the regulatlons, appoint an

officer to act temporarily in

a higher rank."

While provision

is made by s . 2 9 for the promotion of a

fireman to a rank of officer, there is no provision for

appointlng a fireman to act temporarlly as an officer. The

consequence would appear to be that in o circumstances can

a vacancy in an offlce of Station Officer be filled on a

temporary basis.

Section 81 authorises

the

Minister

to make

prescriblng all matters which by the Ordinance are required

or permitted to be prescribed or which are necessary or

convenient' to be prescribed for carrying out or giving

with the

Ordinance,

regulations,

inconsistent

effect to the

Ordinance and, In particular, prescribing

matters for and in relation

to -

the appointmcnt	and	promotion	f
members;

the holding of examlnatlons in connesion

wlth the appointment and promotion of

member

s ;

the temporary appointment of an officer

to a higher rank.

Fire

Brigade

(Administration)

Regulations

( "the

regulations"

)

provide, In reg.19,

that

Commlssioner is not to appoint an officer to act temporarily

in a higher rank unless the officer

1 s -

(a) ehqible for promotion to that rank; and

(h) the only officer, or the more

or most

senior of the officers,

so eligible.

Regulations 8 to 14 inclusive make provision with respect to ellgibility for promotion of members

the

Brlgade to higher rank. Regulations

8, 9, 10, 11 and 12

deal with eligSbility for promotion to the prescribed ranks

of firemen.

the

case

promotion

to each of the

prescribed ' ranks other than that of

First

Class Fireman,

Grade A, the criteria of eligibility are the holding for a prescribed period of the next lower rank and the passing

a prescribed examination.

In the case of promotion to the

rank of First Class

Fireman, Grade A , the only criterion is

the holding of the

next lower rank

for a prcscribed period.

Regulations 13 and 14 respectively make provision

with

respect to

the

eliglblllty for promotion to the ranks

Statlon

Officer

and

Cistrlct

Offlcer.

Those

regulations

provlde:

"13. A person 1s eligible for promotlon to

r.he rank of Statlon Officer if the person has -

!a) held the rank of Senior

Fireman for a

continuous period of	not less than 4
years; and

(b) passed an

examination conducted by the

Commissioner for the purposes	of this
regulatlon.

14. A person is ellgible for promotion to the rank of Distrlct Officer if the person

has

passed an examlnatlon

conducted

the

Commlssioner for the

purposes

thls

regulation.

The regulations do not

prescribe

any

criterion

ellgiblllty for promotion to

the rank of Superintendent.

Regulatlon

16 provides that, notwithstanding the

provlsions of regs

8 to 14 (inclusive), the Commissioner

not to promote a member

to a hlgher rank unless the conduct

and service of the member are satisfactory.

Regulation 17

deals with the situation where more

than	one person is eligible for promotion to a rank.

It	provldes :

"17. Where more than one person

1 s eliglble

for promotlon to a rank, the Commissloner

shall -

(a)

where each eligible person passed the

examination

conducted

relation

promotion to that

rank at the same time

- promote to that rank thc more or most

senlor of those persons; or

I	.
I

5 .

(b)

1 1 1 any vther case - promote to that rank

the person

who

first

passed

the

examinatlon

conducted m relation to

promotion to that rank."

Agam, the requlations provlde no criterion for determlnlnq

the senlority of an eligible person.

The decision the subject

of the present application

is evidenced by

a document of

appointment slgned by the

respondent on 8 August 1986. Thc document reads:

"Pursuant to Sectlon 30 of the Fire Brigade (Administration) Ordmance 1974, I, WILLIAM MOORE

GOULD KERR, the

Flre

Commissioner

for

the

purposes of the said Ordinances CsicII, W E B Y APPOINT 39 NOEL WARREN BISSETT DISTRICT OFFICW to act emporarily in the higher rank of

Superintendent within the

Australian

Capital

Tcrritory Firc Brlgade from 1651 hours 8 August

1986 until 0800 hours 25 August 1986."

On the same day the respondent slgned	a personnel memorandum
reading as iollows:

"Due to

absence

annual

leave,

Superintendent E. Stokes

has been appointed by

the

Minister

for Territories to act

as Fire

Commissioner from 16.51 hours

Friday 8

August

1986 until 0800 hours 22 August 1986.

During this period, District Officer

N. Bissett

will act as Superintendent and

will also continue

t o oversight the training function."

It is common ground that

the applicant and District

Officer elssett jolned the

Erlga.de, on transfer from the

New

South Wale9 Fire Brlgade, on 16 January 1976.

The applicant

had joined the New South Wales Flre Briyacle

on 7 July 1961

whlle Dlstrlct Officer Blssett had joined on

28 June 1963.

13e respectlve dates of the eraminatlons for the purposes of

reg.14 which

the appllcant and Dlstrlct Officer Bissett

passed so as to become ellgible for promotion to the rank of

Dlstrict Officer were

6 and 7 December 1977 and 6 and 7 June

1978. The

appllcant

and

Dlstrict

Officer

Bissett

were

promoted to that rank

on the same date, namely

6 July 1978.

There is in evidence

a document entitled "Senlority

Llst - As at 1.5.86" .

There is, however, no evidence as to

the basis upon which it was prepared. Under each

the

sub-headings,

"Superintendent",

"Acting

Superintendent",

"District Offlcer",

"Acting District Officer" and "Station

Offlcer", the document sets out the names of officers, the names being apparently arranged in descending order

seniority. It also llsts the names

of firemen under various

subheadings, includlng the sub-heading

"Station Officer -

Qualified". Under the sub-heading "District

Officer", the

name

of the

applicant is shown above that of District

Officer Bissett.

Thk

applicant sought and obtained, under

s.13 of

the Judicial Review Act,

a statement in wrlting setting out

the fmdings on material questions of fact, referring to the

evidence or other

material on which those findings were

based

and

giving

the

reasons

for

the

decision.

The

statement

recorded

that

the

decislon

was based

the

senlority

list

whlch I have

referred,

the

officers

' I

8 .

consldered llgible Superintendent In order of senlority,

for

p omotion

tohe

rank

reg.19

the

regulations,

the

conduct

and

service

members

accordance

with

req.16

of the

regulations

and

certain

documents relatinu contalncd the followinq paragraphs:

to the

applicant.

The statement

"For the reasons I have

outlined

below,

consldered the most senior iIistrict

Officer (Mr

Crumblin) to be ineligible at the time.

I then

selected

the

most

senior

Q €

the

eligible

officers, Mr Bissett,

to act a s Superintendent.

The

basis

which

I considered

him

incllgible was that

I was not satisfled that his

conduct

and

service

were

satisfactory.

particular

I had serlous doubts regarding the

example being set

for

other Brigade members by

Ulstrict

Officer P. Crumblin's

attitude, his

apparent

unwillingness

co-operate

re-establishing the Brigade, and his

ability to

managerial

responsibilitity/obliqations

imposed by

his rank.

District

Officer

Bissett

has demonstrated a

willingness

and

ability

managerial

responsibility and obligatlons in

his

current

duties and in the absence

of any evidence to the

contrary I would consider him both eligible and duratlon of the vacancy. Accordingly I appointed him as Superintendent for the duration of the

the

most

senior

available

officer

for

the

vacancy.	'I
;/

The

applicant contends that the appointment

District O'fficer Bissett

emporarily

the

rank

Supcrmtendent was contrary to law and should be set aside

on the ground that

he,

the applicant, was on 8 August 1986,

wlthin the terms of reg.19 of the regulatlons, eligible

for

promotion

to the

rank of Superlntendent and senior

District

Officer

Bissett.

particular,

the

applicant

contends that the respondent was not entitled,

In making his

9 .

decision, to take into account that the conduct and service

of the appllcant were not satisfactory.

The first, questlon

to be addressed is whether on

August 1986 the

applicant and Dlstrlct Officer Bissett were

eliglble

for

promotion

to the

rank of Supermtendent.

Counsel for the applicant submitted that they

both satisfied

that requirement by reason of the

fact that at

that date

they

held

the

rank

District

Officer.

Counsel

acknowledged

that

regulations

do not, in

terms,

prescribe any test of eligibility for promotion to the rank

of Superintendent but submitted that a consideratlon of the

general scheme of the Ordinance and che regulations dlctates

that the

holding of the rank of

District Officer is

condition precedent to promotion to the next higher rank.

Counsel for the respondent was content,

having regard to the

approach which the respondent had taken in making the

temporary appointment, to argue the matter on the basis that

eliglbility for promotion to the rank

Superintendent

depends upon the holdlng

of the rank

District Officer

though he recognised that the regulations

dld not, on their

face, require that those holding the rank of Statlon Officer

were ineligible for consideration.

He submitted, however,

that ellgibility for promotion depends

also upon the conduct

and service of the officer being satisfactory, referring in

this regard to reg.16

of the regulations.

Thls proposition

was disputed by counsel for the applicant

on the basis that

the phrase "eligiblc for promotion" in reg.19 means "legally

qualified f'or

promotlon" and not "suitable for promotion".

10.

He referred to Faramus v. Film Artlstes' Association C19637

2 Q.B. 527; C19647 A.C. 9 2 5 , a case concerning a rule of a reglstcred trade union which provlded	thar; no person who had
bcen convicted in a court of law of	a crlmlnal offence was

"?llqiblc" for membershlp thereof. Lord Evershed,

C19647

A.C. at p.910,

deallnq with the

meaninq

the

word

"eligible", said

this:

"It is

no doubt tr:Je . . . .

that the word

'eligible' according to the dictionary

may, In

certam contexts, mean 'sultable for election' as

distinct from 'qualified for election'. As I

have said, however, In the context of the phrase

in the

present

rule

I cannot for my

part

entertain any doubt but that,

as a matter

English, the word 'eligible' must mean and can only mean 'legally qualified'.''

By way

of contrast, reference may be made to what

was said by Mahon J. delivering the

~udgment

of the Court of

Appeal of New Zealand in Thames Jockey C l u b v. New Zealand Racinq Authority C19757 2 N.Z.L.R. 768.

The question there

arose as

to the meaning

the word "eligibility" in the

definition of

the expression "statutory power of decision"

in 5.3 of the Judicature Amendment A

1972 (N.Z.). That

expression was'defined to mean a power or right conferred by

or under an Act to make a decision deciding or prescribing

(inter alia) the "eligibility" of any person to receive, or

to continue to receive, a benefit or licence, whether he was

legally entitled to it or not. Mahon

J. at p.768 said:

"It was held by Perry

J. that the expression

'ellgibility' as it appears

in Clause (b) of the

defi*ition

'statutory power

of decision'

should be construed as if it meant 'legally qualified' but in our respectful opinion the

correct construction

IS the aiternative meaning

of suitabillty or fitness, lncluding any question

of legal quallflcation.

The meanlng of

tie word "ellqlble", as that of any

other word, may vary wlth ~ t s

context.

There

is no doubt

that the phrase "ellqible for promotlon" in req.19, a phrase which, in its corxext, has reference only to an officer of t he Brigade, is apt to refer to those regulations, namely

reqs 13 and 14, which, in terms, prescribe conditions

eligibility for promotion to a particular rank. There is,

moreover, much to be said

for confining the phrase to the

crltcrla of eliglbility there set out though the absence

any regulation prescrlbing conditions of eliglbillty for promotlon to the rank of Superintendent might be thought to militate against the correctness of this view.

The question which arises in this

case is whether

the phrase "eligible for promotion" in reg.19 is apt to include within its purview the provisions of req.16 which, in the case of the promotion of firemen as well as officers,

precludes promotion unless the conduct

and service

of the

promotee

are

satisfactory.

it were not for

the

introductory words regulation is to apply notwithstanding the provisions

req.16

which

provide

that

regs 8 to 14 (inclusive) - those being the regulations

which, in terms, prescrlbe criteria

of eligibility - I would

have been inclined to hold that the satisfactory conduct and

service of a member 1s not properly to be described as a

matter going to the eligibility for promotion as that phrase

is used in reg.19. However, the presence in reg.16

of the

12.

introductory words has led me to the

opposite concluslon.

'Those words,

In my opinion, require that the criterla for

ellqlbllity prescrlbed m each of the regulations 8 to 14

(inclusive) be read subject to the

further requirement of

satisfactory conduct and service.

Unless those lntroductory

words have tnat,

effect, thclr presence In reg.16 would seem

to me to be otiose.

I am also of opinion that, belng

expressed in general terms, reg.16 provides

a criterlon of

eligibility for promotion to the rank of Superintendent nohithstanding that no other regulation deals with that topic.

am, therefore, of

opinlon that the respondent,

when considermg

whether the applicant

was ellgible to be

appointed to act temporarily In the rank of Superintendent,

was entitled, indeed obliged, by the provisions

of reg.19,

to take into account whether	his conduct and	service were
satisfactory.

Notwithstanding the conclusion expressed above,

should, I think, give further conslderatlon to the matter

the assumption that reg.16 is to

be read as not prescribing

a criterion of eligibllity for promotion within the meaning

of reg.19.

On that assumption, both the applicant and District temporarily in the rank of Superintendent. Regulation 19(b) then requieed that, if an appointment were to be madc, the mare senlor of those officers be appointed.

Officer

Blssett

were

eligible

for

appointment

act

13.

I	have already adverted to the circumstance that

the Ordinance and the regulatlons provide

guidance In

determlning

the

senlority

an officer.

Nor

do they

provide any basis upon whlch a cholce

is to be made between

two officers who

are equal in seniorlty.

I n my opinion,

the question whether one officer 1s

more senior than another

for the purposes of reg.19 is to be

determined by reference not to the length

of servlce of each

officer in the rank whlch he then holds but to

his length of

service in the Erigade.

I can see no justiflcation, in the

absence of

a legislative provision

to that effect, for

determining an officer's senlority by reference to the date

upon which he passed the examination prescribed for the rank

which he holds

or, where such examination

is prescribed, for

the rank to which he 1 s to be appointed temporarily. That the date of passing an examination is not the test

seniority is made apparent upon

a consideration

of reg.17

which provides that, where two persons passed a prescribed

examination

the same time, the more

most

senior

officer is

to be preferred for promotion.

It should, of

course, be noted that reg.17

has

application to the

present case - it applies only in the case

of promotion and,

any

event,

there

no prescribed

examination

for

promotion to the rank

of Superintendent.

It is clear on the evidence that the applicant and

District

Officer

Bissett

were

equal

seniority.

Both

became members of the Brigade on

16 January 1976

and if,

14.

contrary to the

vlew I have expressed, seniorlty in this

context means senlorlty in ;I particular rank, both officers were promoted to the rank of Dlstrlct Officer on 6 July

1978. The

appllcant,

therefore,

cannot

make

good

his

assertlon that	on 8 August	1986 he was senior to District
Offlcer Blssett.

The question

may

then

asked, how 1s

the

respondent, faced wlth

such a sltuation, to determine which

officer is to be

appointed to act temporarily in the higher

rank. In my oplnion, the regulations are not to be read as requiring that, in such circumstances, the respondent is

precluded from maklnq

a temporary appointment. Rather,

examination

of the scope and purpose

of the legislation

leads me to the conclusion that, In such circumstances, the

respondent is

entitled, as

t'ne person charged, subject to

any direction of the Minister, with the general control and

management of

the Brigade (see

5.12 of the Ordinance), to

make such appointment

as in his judgment

is proper.

For the

reasons set out above, the application is

dismissed.

The applicant must pay the respondent's costs.

I	certify that this and

the preceding

13 pages are

a true copy of the Reasons

for Judgment herein of the

Honourable	Justice	Mr
Neaves .

Associate

Dated: 23 April 1987

Counsel for the applicant

: Mr F.J. Purnell

Solicitors for the applicant

:	Pamela Coward G Assoclatcs

Counsel €or the respondent

: Mr C.P. Cornans

Solicltor for the respondent

: Australian Government

Solicitor

Date of hearing

: 7 April 1987

[1987] FCA 201

23 Apr 1987